Benjamin Smith filed this civil rights action, pursuant to 42 U.S.C. § 1983, based on his arrest by Officer Morrison on December 23, 2012. Defendants' Motion for Summary Judgment is pending. This matter is assigned to Judge Haddon and has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). ECF 16.

Having reviewed the record, the Court recommends Defendants City of Billings, Billings Police Department, and Chief St. John's Motion for Summary Judgment be granted, Defendants' motion on Smith's claims brought under MCA § 44-2-117 be granted, and Defendant Morrison's Motion for Summary Judgment be denied.

On December 23, 2012, Billings Police Officer Grant Morrison was patrolling the 400 block of South 34th Street in Billings, Montana, as part of his routine patrol of the area. Defendants' Statement of Undisputed Facts (ECF 35) at ¶ 1. At approximately 9:45 p.m., Morrison observed a blue 2002 Acura sedan with its lights off, "parked on the shoulder of the road." Id at ¶2. It did not appear to Morrison that the engine of the vehicle was running.

In the video from Morrison's patrol car, the subject vehicle appears to be legally parked on the residential street. Video (ECF 37). Morrison's affidavit states that the vehicle caught his attention for several reasons. ECF 35-1 at 2. First, it was a cold, wintry night. He observed two people sitting in the car, and the car was not running. The two people were "moving their heads up and down...." Id. Morrison made a mental note of the vehicle and continued his patrol.

At approximately 10:17 p.m., Morrison again passed the area and saw what he believed to be the same car parked in the same spot and still not running, with the two occupants still in the vehicle. Morrison decided to check on the welfare of the people in the car because it was below freezing, dark, and the vehicle had been stationary for over thirty minutes. Id . at 3. Morrison states that he circled the block, pulled in behind the vehicle, [1] and activated his spotlight so he could see the vehicle better. He did not activate sirens or any other emergency signal equipment. Id.

Before Morrison got out of his patrol car, the occupant on the driver's side of the vehicle, later identified as Smith, exited from the vehicle. Id . at ¶ 8. Morrison states that, because it was dark outside and there were no internal lights in Smith's car, this was the first time that Morrison realized Smith was African American. Id . at ¶ 9. Morrison had no prior dealings with Smith and did not recognize him. Id . at ¶ 10.

The videotape taken from Morrison's patrol car shows that the following events occurred, at the following running times:

00:46 Morrison parks at back of Smith's vehicle and turns on spotlight

00:56 Smith opens driver's side car door and turns as if to step out of the vehicle

1:00 Morrison says, "Noticed you've been there for awhile-everything ok?" (Morrison cannot be seen on the video)

1:00-1:10 Smith gets out of the car and stands directly in front of Morrison's vehicle and has what appears to be a flashlight in one hand and a phone in the other. He gives some explanation but cannot be heard on video-Morrison says ok at 1:07.

1:12 Morrison asks: "Who's your friend?"

1:13 Smith responds, "Jacie."

1:19 Morrison asks: "Do you have any ID on ya?"

1:20 Smith seems to respond that he does not but it is inaudible

1:23 Morrison asks, "How long have you been here now?"

1:25-1:37 Smith gives long explanation which cannot be heard on video

1:37 Morrison says, "I don't know who you are I've never met you before." Smith makes some additional comments which cannot be heard on video

1:53 Morrison says, "Stay right there."

1:54-2:14 Morrison talks to dispatch

2:18 Morrison shuts his car door and says, "The reason I'm out here I saw you guys pull up for awhile ago and you have just been sitting in your car the whole time." Morrison then begins to shine his flashlight into Smith's car.

2:24 Smith says, "No no no, I just really pulled up here right now-that was another car, a green one that looks like this one, but it was ...

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